No hostile environment in school harassment case

Student harassment cases parallel workplace harassment cases in that both require evidence that the plaintiff endured a hostile environment. It's harder to win cases against public schools under Title IX because you have to show the school was deliberately indifferent to known harassment, as opposed to the more lenient burden in Title VII harassment cases, which requires proof that management was negligent in handling the problem. But let's talk about the hostile environment requirement.

The case is R.S. v. Hastings on Hudson School District, a summary order decided on April 9. The ninth-grade student, S.S., received three emails during a 10-day period. These emails were most offensive. As the Second Circuit (Hall, Raggi and Sack) puts it:

Originating from the email account of M.X., a classmate, the first message was profane and disparaged S.S.’s appearance; the second (sent the next day) contained a crude sexual request; and the third declared, in explicit terms, the author’s intent to have sex with S.S. S.S. promptly reported the emails to School District staff, including defendant Assistant Principal Michael Rossi, who had been informed of similar emails sent to at least one other female student from the same account at about the same time. School District staff discussed the emails with S.S.’s parents and questioned M.X., who denied sending the emails and claimed other students had gained access to his email password.

The courts borrow the analysis from Title VII employment cases in deciding whether the sexual harassment at school was severe or pervasive enough to create an hostile educational environment. The Supreme Court came around to recognizing peer harassment claims in the late 1990s, and by now there are enough student harassment cases that provide guidance under Title IX. This decision cites a few disgusting cases of student assaults and harassment from the district courts in the Second Circuit that sufficed to violate Title IX. But this particular case is not pervasive enough for the plaintiff to win (even assuming the school was deliberately indifferent to the harassment).

"While lamentable," these emails "do not rise to the level of actionable sexual harassment under federal law, the Second Circuit concludes. The Court of Appeals reflects the plaintiff's claim that she endured a "months-long campaign of intimidation and humiliation." Three emails like this are not enough, and the Second Circuit will not take into account any of the non-sexual arguments that R.S. had with M.X.

For the Title IX mavens out there, the full story about the deliberate indifferent element of this case is found in the district court ruling, found on Google Scholar. Judge Gardephe ruled in a lengthy footnote that the district was deliberately indifferent to the harassment. Here is a snippit:

Courts have found that a school does not act with deliberate indifference toward harassment where it "promptly investigates, institutes corrective measures, and subsequently continues to monitor the situation." Here, the Court cannot find as a matter of law that the District took any such steps. There are genuine factual disputes as to how promptly the District took obvious and basic steps such as questioning M.X.; interviewing the students identified by M.X. as having access to his account; changing M.X.'s password; and disabling M.X.'s District e-mail account. Moreover, there is no evidence that the District directly asked M.X. whether he sent the offensive e-mails to S.S.; that it took any steps to gather and preserve information about use of its network that might have assisted in determining who sent the e-mails; or that it monitored the use of M.X.'s account after the first inappropriate e-mails were sent from the account.

There is also evidence that the District chose to respond much more quickly and thoroughly to other incidents of harassment. For instance, Rossi testified that when the word "nigger" was found spray painted on a locker, it was photographed and then removed within an hour, and the police were called within a day. The school brought in a former student who was African-American to speak to the student body, and also brought in a facilitator from the U.S. Department of Justice to meet with students. Similarly, when a pornographic picture was e-mailed to the school librarian five or six years earlier, the District traced the e-mail within a week, and identified and suspended the student responsible. Here, the District did not seek to obtain or preserve network system logs that could have facilitated tracing the offensive e-mails until months after the e-mails were sent. By that time, the logs had been destroyed.